Republic v County Surveyor of Machakos & another; Mwakavi (Exparte Applicant); Maingi (Interested Party) (Judicial Review Application 2 of 2023) [2024] KEELC 1761 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed a county surveyor's boundary report because only the Land Registrar, not the surveyor, has power to decide boundary disputes over land with general boundaries.
What this practically means
#Executive summary
#Key legal issues
#Whether the county surveyor had jurisdiction to determine a boundary dispute concerning general boundaries
No; such jurisdiction vests exclusively in the Land Registrar under section 18 of the Land Registration Act, and the county surveyor acted without jurisdiction, rendering the report null and void
The parcels, including the suit property, are defined by general (approximate) boundaries. Section 18 of the Land Registration Act vests determination of disputes over general boundaries in the Land Registrar. Although the exercise was styled 'boundary identification', it in substance determined a boundary dispute. Lacking statutory jurisdiction, the surveyor's report of 24th January 2022 was an illegality and void, meriting certiorari and prohibition.
Whether the process adopted by the county surveyor violated the applicant's right to a fair hearing
Yes; the applicant's parcel was not listed in the notice/report as affected, and the matter was framed as boundary identification without identifying the parties, depriving him of a fair hearing under Article 50
The surveyor's report did not list the applicant's parcel despite his being the owner of land affected by the decision. Framing the exercise as boundary identification rather than a boundary dispute, without stating claimant or respondent, failed to clarify with precision the case against him, so he could not sufficiently prepare his defence. This was procedurally unfair and violated Article 50.
Whether mandamus was available to compel a redo of the boundary rectification
No; mandamus issues only where a public officer declines to perform a statutory duty, and the applicant had not exhausted the remedy before the Land Registrar
The applicant did not demonstrate that he filed a boundary dispute before the Land Registrar and that the Registrar declined to determine it. Mandamus is unavailable absent a demonstrated refusal to perform a statutory duty. Moreover, rectification and verification of a general boundary vests in the Land Registrar, not the county surveyor.
Legal principles established
#- Jurisdiction flows from the constitution or statute and no court, tribunal or office can arrogate to itself jurisdiction it does not have
- A decision made without jurisdiction is an illegality, null and void and liable to be quashed by certiorari
- Under section 18 of the Land Registration Act, jurisdiction over boundary disputes concerning general boundaries vests in the Land Registrar, not the county surveyor
- Judicial review is concerned with the decision-making process, not the merits of the decision
Court orders
#- 1.An order of certiorari to remove into the court and quash the decision and/or report of the County Surveyor Machakos dated 24th January 2022
- 2.An order of prohibition prohibiting the Respondents from implementing the decision and/or report of the County Surveyor Machakos dated 24th January 2022 as far as Plot No. Mavoko Town Block 3/43224 is concerned
- 3.Costs of the suit awarded to the ex-parte applicant, to be borne by the interested party
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; supervisory jurisdiction over statutory decision-makers; Article 50 and Article 47 of the Constitution invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Surveyor of Machakos & another; Mwakavi (Exparte Applicant); Maingi (Interested Party) (Judicial Review Application 2 of 2023) [2024] KEELC 1761 (KLR)", Case Analysis (2024). Judicial Review application dated 4th March 2023 (Notice of Motion dated 14th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1761/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.